The ultimate responsibility to look after and care for a child up until the legal age of adulthood falls with the child’s parents. The age of adulthood in Canada is generally considered to be 18 years of age. When an individual attains the age of 18, they are presumed to be capable and competent to make decisions about their own health and well-being, as well as finances. While many adults with disabilities can manage their own affairs independent of parental assistance, others cannot. In the event that a disabled adult child is incapable of making decisions for themselves, there are a number of options available to parents who wish to make decisions on their child’s behalf.
The starting point for a disabled person and/or their parent is to assess each need for a decision individually and determine whether the child is capable of making a decision themselves. In addition, provinces have enacted legislation regarding what may happen if and when an individual is incapable of making certain decisions about their finances and/or personal care.
Provincial law governs the procedures by which a decision-maker may be appointed for a mentally incapable person. Such procedures depend on the type of decision the person is incapable of making. One set of rules applies when a person is incapable of making decisions about their property or finances and another set of rules applies if the incapacity relates to personal care decisions. A person who makes decisions on behalf of another may be referred to as a ‘substitute decision-maker’.
Decision-making for property/finances
If an adult is incapable of making decisions relating to their property or finances, there are three ways by which a decision-maker may be appointed:
- Enduring or Continuing Power of Attorney: Written authorization by an individual specifying a particular decision-maker of their choice. This must be made before the person becomes incapable.
- Statutory Guardianship: This process only occurs if a person has not made a continuing power of attorney concerning all of their property and is assessed as incapable. In such instances, the statutory guardian of property will be the provincial Public Guardian and Trustee unless a family member or other authorized person applies to assume this role.
- Court-Appointed Guardian of Property: An individual can be appointed and authorized by a Court to act on another person’s behalf with respect to decisions about property and finances. Provincial legislation describes the material that must be submitted to the Court and outlines who may be appointed and under what circumstances. The title of this person varies by province, including Guardian of Property or Trustee.
Decision-making for personal care
If an adult is incapable of making personal decisions, there are two ways in which a decision-maker may be appointed:
- Power of Attorney for Personal Care: Written authorization by an individual specifying a particular decision-maker of their choice. This must be made before the person becomes incapable. This document allows the individual to make decisions about a multitude of issues such as medical treatment, day-to-day living, and admission to long-term care facilities.
- Court-Appointed Guardian for Personal Care: An individual can be appointed by a Court to act on another person’s behalf in relation to decisions about personal care. The Court may delegate all personal care decisions or specify which decisions are to be made by the person and which decisions are to be made by the individual for themselves. The title of this person varies by province, including Guardian of Property or Custodian.
The chief distinction between attorneys and guardians is that an attorney’s right to act on behalf of another individual must be given while the individual is still mentally capable. A guardian, on the other hand, is appointed by a third party after the person whose affairs are to be managed has become mentally incapable. An experienced professional should be consulted to consider the available options and help determine the best solution for a given situation.
For additional information or assistance with ensuring that your disabled child is cared for, please consult a TEP.