How to Take Power of Attorney When One Is Mentally Incapable

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In the province of Ontario, Canada, the law provides for you to prepare a power of attorney to appoint someone to take control of your affairs and act in your name if you become mentally incapable. However, in circumstance where a person becomes mentally incapacitated without a power of attorney already made, someone will have to be appointed as guardian to have the same authority provided by a power of attorney. If you are concerned about someone's mental capacity, the process of appointing guardians is handled through the Office of the Public Guardian and Trustee (OPGT).

Request an assessment of the person's mental capacity by contacting the OPGT and obtaining a list of the assessors who are specially qualified to perform capacity assessments. The assessment is a formal procedure performed to specific protocols to determine a person's mental capacity to make decisions about his property and personal care, including medical decisions.

Fill out a Request for Assessment (known as "Form 4") provided by the OPGT. The form must also be signed by the assessor who will conduct the capacity assessment. The form requires you to indicate your concern for the person's mental capacity and that you are unaware of any power of attorney prepared by the person.

Prepare for an interview with the assessor, as the process of assessment usually begins by obtaining information from the person who requested the assessment. Indicate the events that triggered your decision to request an assessment. Provide as much information as you know about the person's medical and financial condition, including the daily demands faced by the person.

Indicate whether you want to be appointed guardian or if you know of any family members that would accept appointment. If there is no one willing to act as guardian, the OPGT will act as public guardian for the person.

Warnings

  • Do not contact the OPGT to request an assessment if the person you are concerned about is in an immediate emergency. Take the person to a hospital. The OPGT cannot make medical decisions for any person until after the assessment process is completed.
  • Anyone can refuse to be assessed. If that occurs, your only recourse for appointment of a guardian would be to request a hearing before Ontario's Capacity and Consent Board to determine the person's mental capacity.

Tips

  • As difficult as it may be to contemplate your own incapacity, it is always a good idea to plan ahead and prepare a power of attorney that can be effective if you should become mentally incapable of caring for yourself and managing your property.
  • The primary value to planning ahead is that you choose the person you feel is trustworthy and knows your wishes to act on your behalf, rather than a government official.
  • Planning ahead also lessens the financial and emotional burden on your family and friends by avoiding an administrative or judicial proceeding to have someone appointed as your guardian.

References

About the Author

Joe Stone is a freelance writer in California who has been writing professionally since 2005. His articles have been published on LIVESTRONG.COM, SFgate.com and Chron.com. He also has experience in background investigations and spent almost two decades in legal practice. Stone received his law degree from Southwestern University School of Law and a Bachelor of Arts in philosophy from California State University, Los Angeles.