Mental Incompetency

Guiding you to make the best decisions for your loved ones.

As a family member increasingly loses their ability to manage their own life due to diminishing mental capacity, it can be an intensely emotional and challenging time. These troubling circumstances are often compounded by disputes between family members over who is best able to care for and protect your loved one. In some cases, years of hurt, resentment, betrayal and mistrust between family members can create intolerable obstacles when resolving issues arising over the care and management of vulnerable or mentally incapacitated family members through the use of Powers of Attorney, Trusts and Guardianships. We understand the pressure you are under and are here to support you.

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
  • The Powers of Attorney Act.

Power of Attorney (POA)

An individual may plan for their own incapacity by executing a power of attorney for personal care and a continuing power of attorney for property in favour of their own personal choice of substitute decision maker.

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 their 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 – who holds very high position of trust.  As such, the attorney must be able to account for their 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. At times 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 their 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.

What if there is no POA?

Sometimes, there are instances where an individual has not granted power of attorney or, the power of attorney is found deficient or unable/unwilling to act. In these circumstances, 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. Under limited circumstances the Public Guardian and Trustee may become the statutory guardian of an incapable person’s property and application to the court may be made by an individual to replace the Public Guardian and Trustee as statutory guardian of property. 

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. Occasionally, there may even be proceedings taken under the Criminal Code of Canada.

Guardianship Applications under the Substitute Decisions 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 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 licensed capacity assessor.

A court will only appoint a guardian where the court is satisfied that the person is incapable of managing their 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.

The costs and challenges of contested guardianship proceedings can be emotionally overwhelming and very expensive.  In this instance we use tools such as mediation and negotiation where it is in the best interests of the incapable person and our client to do so.  Uncontested guardianship applications are more frequent and under such circumstance an order for guardianship can be obtained on a timely basis in a cost efficient manner. 

Our Estate, Trust, and Capacity Litigation team brings a wealth of experience in navigating the challenges and pitfalls of guardianship and power of attorney law. We consistently achieve the desired results which our clients seek.

Consent and Capacity Board

The Consent and Capacity Board is an independent body created by the Government of Ontario under the Health Care Consent Act.  It conducts hearings under the Mental Health Act, the Health Care Consent Act, the Substitute Decisions Act, the Personal Health Information Act and the Mandatory Blood Testing Act.  The lawyers in our Estate and Capacity Litigation Group are available to appear before the Consent and Capacity Board to advocate on your behalf.

For assistance with your power of attorney, guardianship dispute, or Consent and Capacity Board enquiry, please contact Sarah Williamson by email or at 613.544.0211, ext. 8051.

Mental Incompetency Lawyers

Our Estate, Trust, and Capacity Litigation team offers a wide range of legal services to help support businesses of all sizes.

Desiree Smith


Desiree Smith is an Associate in our General Litigation group. Before joining Cunningham Swan,

Read more