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WHAT IS (IN)CAPACITY?
Capacity refers to the legal ability of an individual to make certain decisions for themselves such as regarding their assets, personal care, or healthcare. Capacity is task-specific, time-specific, and it can fluctuate throughout a person’s lifetime.
All adults (over the age of 18) are legally presumed to be legally capable of making decisions for themselves unless proven otherwise.
A person can be legally incapable of making certain decisions due to factors including (but not limited to) their age, cognitive impairment, mental illness, developmental disability, or even temporary conditions like unconsciousness.
WHAT IS INCAPACITY PLANNING?
Incapacity planning focuses on creating a plan for the time you become legally incapable of making decisions for yourself. A significant part of the plan is to create Powers of Attorney (called substitute decision-makers) when you chose the person(s) you want to step in and make decisions for you. Another significant part is to think about what you want and then have conversations with your supportive network about your wishes.
Incapacity plans are important as they empower individuals to ensure their wishes and preferences are carried out during the period of incapacity. These arrangements can protect your peace of mind and save your loved ones from undue stress, cost, and time.
There are tools that can help with this process and help your substitute decision maker be proactive in knowing when they need to become involved.
Remember, anyone, at any time, can lose their decision-making capacity.
If incapacity plans are set in place, then those you have chosen can…
- step forward quickly and efficiently to make decisions in your best interests;
- mitigate detrimental delays for medical and healthcare decisions;
- make immediate decisions on financial matters; and
- avoid costly, time-consuming, and unwanted court intervention in the decision-making process.
LEGAL COMPONENTS OF INCAPACITY PLANS
Incapacity planning can entail the following legal components:
POWER OF ATTORNEY FOR PROPERTY
This legal document allows an individual (the “grantor”) to appoint someone (an “attorney”) to make financial and property-related decisions (such as regarding finances, paying bills, managing assets, making investments, and other property-related matters) on behalf of the grantor. The grantor must have the legal capacity to create a valid and enforceable Power of Attorney for Property.
POWER OF ATTORNEY FOR PERSONAL CARE
This legal document allows an individual (the “grantor”) to appoint someone (an “attorney”) to make healthcare and personal decisions (such as regarding medical treatment, living arrangements, personal care, and end-of-life wishes) on behalf of the grantor if they lose decision-making capacity. The grantor must have the legal capacity to create a valid and enforceable Power of Attorney for Personal Care.
LIVING WILLS
A living Will (also referred to as a “health care advance directive”) is a written statement about your health care wishes in a situation where you become incapacitated and are unable to communicate these wishes to your family and the medical team. Although a living Will is not legally binding like a regular Will, your healthcare providers and substitute decision-makers (such as an attorney under a Power of Attorney for Personal Care) are expected to consider your known expressed wishes when making decisions on your behalf.
In this Will, you can express your health care wishes in greater depth than in a regular Will and Power of Attorney of Personal Care. You can include directives about life-sustaining treatments such as resuscitation, mechanical ventilation, artificial nutrition and hydration, and other medical interventions. You may express that your life should not be prolonged where there is unbearable suffering. You may approve, refuse, or express preference for certain medications and treatments. Often times the contents of a living Will form part of one’s Power of Attorney for Personal Care.
WHAT HAPPENS IF YOU DON’T HAVE AN INCAPACITY PLAN SET IN PLACE?
In cases where an individual loses decision-making capacity and has not created valid and enforceable Powers of Attorney OR their Powers of Attorney are limited in their scope of decision-making authority, a guardianship application has to be brought to Court. As this is an expensive and time-consuming legal process, it is recommended that individuals create incapacity plans in advance while they retain the legal capacity to do so.
The lawyers at Sweatman Law have decades of experience creating incapacity plans and completing successful guardianship applications. Click here to get in touch with us today!
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All incapacity plans are unique and should be reviewed by legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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