How Appointing A Power Of Attorney Can Simplify Your Life In The Event Of A Serious Accident

BY: HOLLY SCHMID

Guardianship Applications

If you become unable to make decisions for yourself, who would you want to make decisions for you? And what type of decisions do you want them to make? This is a question that is often asked too late – such as after a serious car accident.

Capacity

Once you reach the age of 18 you have the ability to make choices about your finances and personal care. At law, this is called having “capacity”.

In the event you lose capacity, someone will have to make decisions for you. A loss of capacity can be temporary or permanent. A person in a coma, for example, will need someone to handle their affairs while they are unconscious. They may regain capacity once they awake from their coma.

A loss of capacity can also be permanent.? We often see this in the event that a client suffers a serious traumatic brain injury. This can cause an inability to make appropriate care and financial decisions.

If a person loses capacity, an alternate decision maker needs to be appointed. There are only two ways to appoint a decision maker. The first way it to appoint a Power of Attorney. The second, less desirable option, is for a friend or family member to apply to be appointed a Guardian of Property and/or Personal Care.

Power of Attorney

A Power of Attorney allows you to appoint someone to make important decisions on your behalf. This document must be in place before you lose capacity. It is the only way you get to decide who your substitute decision maker will be. Despite its importance, only 35% of Canadians have a Power of Attorney. [1]

In your Power of Attorney documents, you get to decide:

• who your attorney(s) will be;
• in what situation the attorney can start acting on your behalf; and
• whether you want to highlight any specific wishes.

There are two types of Power of Attorney documents. They cover different issues:

1. Power of Attorney for Personal Care. You can appoint someone to manage your personal care decisions. Examples include shelter, feeding, health care, clothing, and education, etc.
2. Continuing Power of Attorney for Property. You can appoint someone to manage your financial and property-related decisions. Examples include paying bills, selling your house, and managing investments, etc.

See the Government of Ontario’s detailed webpage about Power of Attorneys. The Government has also provided a free online tool for preparing your own Power of Attorney. We recommend speaking with an Estate Lawyer to discuss any questions you have.

Guardianship

What happens if your loved one is in a serious accident and there is no formal plan in place? Is a family member or a friend able to step in to make decisions for you? The answer is yes, but it requires some work.

Ontario law allows for a “Guardian” to make decisions on behalf of an incapable person.[2]

A potential Guardian has to apply for the role. Either the Office of the Public Guardian and Trustee or the Court must appoint the Guardian. A potential Guardian has to show that they are aware of the person’s personal wishes, goals, and needs.

Once appointed, a Guardian must involve the person as much as possible in decision making. The Guardian must respect the opinions of the person if the person is capable in any way.

There are two types of Guardians:

1. Guardianship of the Person.
2. Guardianship of Property.

Guardianship of the Person is like the Power of Attorney for Personal Care. A Guardian of the Person can make personal care decisions such as:

• health care;
• nutrition;
• shelter;
• clothing;
• hygiene; and
• safety.

In Ontario there is an order of who gets to make healthcare decisions on someone’s behalf. The Guardian of the Person is above all others.[3] Spouses and Children are lower on the list.

For more information, click here.

Guardianship of Property is like the Continuing Power of Attorney for Property. A Guardian of Property manages property and financial decisions. A Guardian of Property can:

• open and close bank accounts;
• redirect pensions and other income;
• apply for benefits or supplementary income;
• pay bills; and
• buy goods and services.

Unless there are joint funds or a home, a Guardian must step in to make property decisions.

For more information, click here.

Becoming a Guardian

In many situations, a Judge must appoint you to be Guardian. This involves an application to the Court. Some of the steps in this process include:

• Gathering information about the persons financial and health status;
• Gathering information about the persons goals;
• Speaking with others who may have a say in your loved one’s decision making;
• Filling out the Management Plan and/or Guardianship Plan;
• Providing a Statement; and
• Obtaining a capacity assessment.

Applying to become a Guardian of Personal Care or Property can be a complicated process. But it is an important step towards ensuring your loved one’s wishes and needs.

If you or a loved one has been seriously injured, you should contact a lawyer to learn more about your options. If you are applying to become a Guardianship you should hire a lawyer to help.

[1] Estate planning: Report reveals many Canadians are not prepared – RBC Wealth Management

[2] Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[3] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 20.

About The Author: HOLLY SCHMID

Holly is has always been passionate about assisting others and meeting them with care and understanding. For Holly, a career in personal injury law was a natural extension of her goal to help people as they navigate complex and difficult life changes.

To read more about Holly Schmid, please click here.