How do I make decisions for my disabled child?

Posted on By Louise Polcaro
decisions for disabled child

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 or 19 years of age, depending on the province of residence.

The age of majority is 18 in six provinces: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan. The age of majority is 19 in four provinces and the three territories: British Columbia, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, and Yukon.

When an individual attains this age of majority, 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:

  1. 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.
  2. 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.
  3. 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:

  1. 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 appointed individual to make decisions about a multitude of issues such as medical treatment, day-to-day living, and admission to long-term care facilities.
  2. 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.

I have been given Power of Attorney. What does that mean?

Posted on By admin
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Outside of Québec, the role of someone appointed under a Power of Attorney (POA) is to step into the shoes of an incapable individual for the purpose of making financial decisions and/or personal care decisions that they can no longer make for themselves. The purpose of a POA is to protect the interests and welfare of the individual who appointed the attorney.

For information regarding incapacity planning in Québec, please see the article Incapacity Planning in Québec.

The duties of the attorney are outlined in the POA legal documents. Generally, the attorney will be able to do everything that the grantor can do with respect to their personal matters, unless they are explicitly restricted from doing so.

The nature of the role will depend on the type of POA which has been executed. Generally, there are two main types of POA appointments:

  1. Power of Attorney for Property (POAP)
  1. Power of Attorney for Personal Care (POAPC) (also known in some jurisdictions as a personal care directive)

Appointed as Power of Attorney for Property (POAP)

An individual who has been appointed under a POAP can manage the grantor’s financial affairs and make legal decisions with respect to physical assets. Unless the grantor restricts these powers, the attorney will be able to do almost anything that the grantor can do concerning finances. They can sign documents, start or defend a lawsuit, sell property, make investments and purchase things for the grantor. However, under a POAP, an individual cannot make or change an existing Will, change beneficiaries on a specific insurance product or transfer their duties under the POAP to someone else.

An individual will be able to assume responsibilities under a POAP as soon as it is signed and witnessed, unless the document says otherwise. An attorney is required to keep the grantor’s financial information confidential and should respect the grantor’s privacy unless: (1) the grantor specifically authorizes them to disclose information by saying so in the POAP; or (2) they need to disclose this information to carry out their duties or to abide by the law.

When carrying out their obligations under a POAP, an attorney is generally entitled to take payment from the grantor’s funds at a rate specified by law, which varies by province, unless the grantor states otherwise in the document. An attorney is also required to provide the grantor with a full accounting whenever asked.

Appointed as Power of Attorney for Personal Care (POAPC)

An individual appointed under a POAPC is responsible for managing the personal care and health care decisions of the grantor. With regard to personal care, they may make decisions pertaining to housing, diet, personal hygiene and social life. With respect to health care, they may make decisions regarding medical treatment or the withholding of such treatment. Under a POAPC, the attorney can only make decisions about those aspects of personal care that the grantor cannot make themselves.

Unlike a POAP, a POAPC may only be used during a time that the grantor is mentally incapable of making their own personal care decisions. The attorney is typically responsible for deciding whether the grantor is mentally incapable, with a few exceptions (such as if specified otherwise in the PAPC).

An attorney appointed under a POAPC is also required to keep the grantor’s personal information confidential. As with a POAP, the grantor’s privacy should be respected unless: (1) the grantor specifically authorizes them to disclose information by saying so in the POAPC; or (2) they need to disclose this information to carry out their duties or to abide by the law.

In some instances, a grantor may include “advance directives” in their POAPC. Advance directives are more commonly known as “wishes” and they serve to provide personal instructions to attorneys about the grantor’s personal preferences regarding personal care and health care. An attorney is legally obligated to follow these wishes, if possible.

If you have been appointed under a Power of Attorney and/or have any additional questions please consult a TEP.