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.

What should I look for when choosing a trustee?

Posted on By Louise Polcaro
choosing a trustee

If you’re thinking about setting up a trust, either to take effect in your lifetime or after your death, you need to take care when choosing a trustee.

In setting up a trust, you are giving up ownership of the assets, and signing them over to the trustee. The trustee will then take responsibility for managing the money or assets that you have set aside in the trust for the benefit of someone else (the beneficiaries). The trustee must use the money or assets in the trust only for the beneficiary’s benefit and everything the trustee does must be done in the beneficiary’s best interests.

Clearly, with such an important responsibility, it is essential to choose the right person to act as trustee.

Who can be a trustee?

As a general rule, anyone over the age of 18 can be a trustee. But you will want to be very careful about who you give the power and responsibility of trusteeship to.

Many people appoint a trusted family member or friend for trusts that take effect after their death. For trusts that take effect in your lifetime, you can appoint yourself and your spouse/civil partner/partner as trustee(s) if you wish, so that you retain some control over the assets and the decision-making power, though you must exercise this for the benefit of the beneficiaries.

How many trustees should there be?

Two or three are preferred. Four is the maximum (unless it is a charity), and only one trust corporation is needed.

Must I appoint a professional trustee?

You do not need to appoint a professional trustee, but this can be helpful if the others are unfamiliar with the obligations of the role. Alternatively, you can appoint family or friends and they can take advice from a professional trustee as and when necessary.

What do I need to think about when choosing a professional trustee?

If you decide to use a professional trustee, make sure you do some research before you sign up with them.

  • How long has the company been trading?
  • Are they regulated by any body/bodies?
  • Have they signed up to any professional codes?
  • Do they have a good reputation?
  • Are their charges reasonable?
  • Do they have professional indemnity cover, or other protection in place?
  • Who are the directors? Check their credentials and background

You should take your time and shop around to ensure you are completely comfortable with the company before you make a decision.

Final thoughts

Ultimately the clue is in the name: ‘trust’. You must make sure you trust the person or people you appoint as trustee(s). This is an important decision and must not be taken lightly.