Mental Incompetency

Kingston and Eastern Ontario Power of Attorney and Guardianship Lawyer

As one’s aging mother, father or loved one increasingly loses the ability to manage his or her life due to diminishing mental capacity it can be an intensely emotional and challenging time, often compounded by disputes between family members over who is best able to care for their loved one.


In Ontario, several statutes stipulate who may make decisions for incapable persons, and the manner in which decisions are to be made respecting the personal care and property of individuals who are incapable of managing their own personal care and/or property. These statutes include the Substitute Decisions Act; the Health Care Consent Act; and the Powers of Attorney Act. An individual may plan for his or her own incapacity by executing a power of attorney for personal care and a continuing power of attorney for property in favour of his or her own personal choice of substitute decision maker. The document must be prepared in accordance with the statutory requirements set out in the Substitute Decisions Act.

Where an individual has not made a grant of power of attorney or, if the power of attorney is found deficient or the attorney is unable or unwilling to act, an application may be made to the Court for the appointment of a guardian of the person and guardian of property for a mentally incapable person. In certain instances the Public Guardian and Trustee may become the statutory guardian of an incapable person’s property and application may be made by an individual to replace the Public Guardian and Trustee as statutory guardian of property. The costs and challenges of guardianship proceedings can be emotionally overwhelming and very expensive. Fleming Estate Law helps clients find strategies to pursue their goals including negotiation and mediation that can be as effective and often faster than litigation.

Power of Attorney

A power of attorney is an authority given by one person (the grantor) to another person (the attorney) to act on behalf of the grantor in conducting his or her financial affairs or in making personal care decisions for the grantor in the event the grantor should subsequently suffer from legal or mental incapacity to do so. The authority granted may be comprehensive so as to encompass all acts of a financial nature or all types of personal decision-making or may be restricted to specific acts or types of decisions.

An attorney appointed by a power of attorney is a fiduciary, that is to say, is in a position of trust. As such the attorney must be able to account for his or her actions at all times, must use reasonable care in acting for the grantor, and must not act in conflict with the grantor’s interests.

Power of Attorney Disputes

A person, while capable, may grant and revoke powers of attorney freely. However, the Substitute Decisions Act stipulates what a person giving a power of attorney must comprehend in order to have the requisite capacity to give a power of attorney. Occasionally there are disputes between attorneys under powers of attorney given at different times during the grantor’s lifetime as to which power of attorney is valid. Similarly, a person may revoke a power of attorney where he or she does not agree with decisions that are being made in respect of his or her person and property by the named attorney. The attorney in this instance may take the position that the grantor lacks capacity to revoke the power of attorney.

Where there are multiple attorneys named there may be disputes as to the management of property or personal care decisions. Attorneys may be called upon to account for their management of property by the grantor, the Public Guardian and Trustee or by any other person with leave of the court. In more extreme cases of misconduct by an Attorney for property, an interested person may apply to have that Attorney removed from that role.

Guardianship Applications Under the Substitute Decision Act

Guardianship applications are made to the Superior Court of Justice. Applications are supported by detailed affidavit evidence setting out the reason that the application for guardianship is being sought, including evidence as to the incapacity of the person for whom guardianship is sought and a detailed plan for the care of the individual’s person or property. The plan for the care of the incapable person’s property is called a “management plan”. The plan for making personal care decisions is called the “guardianship plan”. Management plans and guardianship plans must be submitted to the Office of the Public Guardian and Trustee for its approval. The management and guardianship plan forms part of the guardianship order. Medical evidence, while not required by statute, is a practical necessity on any application to the court for the appointment of a guardian. Capacity assessments of the individual for whom guardianship is sought are frequently obtained from a designated capacity assessor.

A court will only appoint a guardian where the court is satisfied that the person is incapable of managing his or her property or making personal care decisions and, as a result of being incapable, the person requires decisions be made on that person’s behalf by a person authorized to do so. If there is any alternative to the appointment of a guardian that is less restrictive to that person’s decision-making rights, the court is directed by legislation to adopt the less restrictive means.

To get the professional help you need related to mental incompetency, power of attorney and guardianship law in Kingston, Eastern Ontario, and the surrounding areas, contact Fleming Estate Law today.