When A Parent is "Incapable":

Power of Attorney and Guardianship

A reader asks, "My mom lives in another province. She has developed Alzheimer Disease and we have been asked about Power of Attorney. What do we need to know?"

What is a "Power of Attorney?"
Power of Attorney refers to a document in which an adult appoints someone else to act on his/her behalf. The person transferring the power is the donor;  the person receiving the power is the attorney.

The "power" can be specific to only a certain task, or can cover a broad range of responsibilities. The authority or power can start immediately, or only when mental incapacity occurs. The authority ceases upon the death of the person granting the power.

Each province governs the regulations related to power of attorney. In most provinces, power of attorney is limited to financial and property decisions, and DOES NOT allow the person to make health care decisions (see "Guardianship" below.).

By exception, there are three types of power of attorney in Ontario.

• Continuing Power of Attorney for Property for decisions regarding finances and property. This document remains valid if you lose mental capacity.
• Non-continuing Power of Attorney for Property. This document is a temporary appointment of power that ends if you become mentally incapable.
• Power of Attorney for Personal Care. This document addresses decisions regarding housing and health care.

What is "Guardianship?"
Guardianship is the legal authority given to an adult to make personal and health care decisions on behalf of another person who has been found to be incapable.

What does "incapable" mean?
Capacity refers to an individual's mental ability to make decisions about property and personal care. Only qualified individuals, such as a doctor, nurse, psychologist, social worker, or occupational therapist can assess capacity. Specific guidelines must be followed.  A person who lacks this capacity will be found "incapable" or to "lack mental capacity."

Mental incapacity is the inability to understand the information that is relevant to a decision, or to appreciate the consequences of a decision.  Of note, it is the ability of the person to reason and understand that determines capability, NOT the type of choices that he/she makes.  All of us are entitled to make bad choices in life!

How to apply for Power of Attorney or Guardianship
Each province has specific legislation governing the ways in which someone can act on behalf of another adult. Contact the Office of the Public Guardian and Trustee in your parents' province. Consult a lawyer who practices in your parent's province.

Visit our Library and click on the "Relationships" tab at  www.elderwise.ca/library.html  to read "Seniors at Risk", by Brenda MacDonald, one person's story about the responsibilities that came with accepting power of attorney. 

Vol.3, No.5

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