i. indicating that, after the power of attorney was executed, the assessor performed an assessment of the grantor’s capacity, ii. 1992, c. 30, s. 89 (6). They may be made only if the property is and will remain sufficient to satisfy the requirements of subsection (1). 1996, c. 2, s. 11. (d) unless the power of attorney provides otherwise, the grantor’s spouse or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act. (3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into effect when, (a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of managing property; or. 1996, c. 2, s. 44. (5) The guardian shall consult from time to time with, (a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and. (2) A regulation may not be made under clause (1) (e.4) unless a regulation has been made under clause (1) (e.5). 5. The person’s brothers and sisters who have attained the relevant age referred to in paragraph 2. 1996, c. 2, s. 10; 2009, c. 33, Sched. B, s. 22 (9). 4, s. 34; 2017, c. 25, Sched. 1996, c. 2, s. 40 (1). (6) After becoming a person’s statutory guardian of property under subsection (5), the Public Guardian and Trustee shall ensure that the person is informed, in a manner that the Public Guardian and Trustee considers appropriate, that, (a) the Public Guardian and Trustee has become the person’s statutory guardian of property; and. 2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1996, c. 2, s. 43 (3). (2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will. an appeal from a decision of the Consent and Capacity Board on an application under section 20.2 is finally disposed of, if an appeal is taken and it is finally determined that the person is capable of managing property. (4) A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so. v. an appeal from a decision of the Consent and Capacity Board on an application under section 20.2 of this Act or section 60 of the Mental Health Act is finally disposed of, if an appeal is taken and it is finally determined that the person is capable of managing property. For more information, see: Public Guardian and Trustee of B.C uuid:9b3b2d5e-8b0d-4d53-af51-9b09f4a7148f (2) Nothing in this section affects the liability of the estate on whose behalf a guardian is acting with respect to any debt or other liability or obligation of the corporation. A person who makes decisions for another person is called a "substitute decision-maker." (4) If there is a remaining statutory guardian as described in subsection (5), (a) the remaining statutory guardian continues to have power to act; and. (3) Subsections (1) and (2) do not apply to an assessment if, (a) the assessment was ordered by the court under section 79; or. 1992, c. 30, s. 7 (6). 9, s. 120 (1)), Note: On a day to be named by proclamation of the Lieutenant Governor, the Schedule to the Act is amended by striking out “Private Hospitals Act”. 1992, c. 30, s. 86 (1). 2006, c. 34, s. 24 (1). 1992, c. 30, s. 2 (4). (c) setting out the facts on which the opinion is based. 27, s. 5. 27, s. 3. 2006, c. 19, Sched. The attorney under a continuing power of attorney for property. Required documents, summary disposition, application to appoint guardian of the person. (9) The power of attorney may be in the prescribed form. 1992, c. 30, s. 42 (1). 1996, c. 2, s. 11; 2006, c. 19, Sched. 1992, c. 30, s. 75 (1); 1996, c. 2, s. 51 (1). 1992, c. 30, s. 85 (4). There are two ways to identify who would be your SDM in Ontario: The Health Care Consent Act provides a hierarchy (ranked listing) of your possible automatic SDMs. 1992, c. 30, s. 93. 1996, c. 2, s. 58; 2019, c. 7, Sched. 33.1 A guardian of property shall make reasonable efforts to determine, (a) whether the incapable person has a will; and. (2) An attorney under a continuing power of attorney shall make an application to the court to obtain the authority referred to in subsection 37 (5). 1992, c. 30, s. 25 (3). the time for appeal from a decision of the Consent and Capacity Board on an application under section 20.2 has expired, if the Board determines that the person is capable of managing property and no appeal is taken, or. (11) Subsection (10) does not apply if, within three years after the decision is made not to make an application under subsection (3.1), (a) another investigation is commenced in respect of the person under this section or section 62; or. (6) The court may by order appoint the Public Guardian and Trustee as temporary guardian of property for a period not exceeding ninety days. 1992, c. 30, s. 62 (2). Application Substitute Decisions Act, 1992. 1992, c. 30, s. 83 (8). 48 (1) A power of attorney for personal care shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. 1996, c. 2, s. 32 (1). 1992, c. 30, s. 9 (1). 27, s. 5. (8) The Public Guardian and Trustee shall give the person appointed as statutory guardian of property a certificate certifying the appointment. (3) If an attorney has reason to believe that a person entitled to receive a copy of the attorney’s resignation needs it to be provided in an accessible format, or if the person has requested an accessible format, the attorney shall provide the person with a copy of the resignation in a format that is accessible to that person. 1996, c. 2, s. 11. 6. 63 (1) The court may terminate a guardianship created under section 55, on motion in the proceeding in which the guardian was appointed. Under the Substitute Decisions Act, a person is presumed to be capable until declared to be incapable. 2006, c. 19, Sched. (4.1) The guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person’s behalf. At the time the power of attorney was executed or within 30 days afterwards, the grantor made a statement in the prescribed form indicating that he or she understood the effect of the provision and of subsection (4). 1996, c. 2, s. 32 (1). (iv) in the case of an application to appoint a guardian of the person, at least one of the statements referred to in section 74 indicates that its maker is of the opinion that the person needs decisions to be made on his or her behalf by a person who is authorized to do so; (b) in the case of a motion, the moving party certifies in writing that, (i) the documents required by this Part accompany the motion, and. 89 (1) No person shall hinder or obstruct. Expenditures under paragraph 3 may be made only if the property is and will remain sufficient to provide for expenditures under paragraphs 1 and 2. B, s. 22 (8). A person referred to in subsection (6), whether or not served with the notice of application or notice of motion. 1996, c. 2, s. 60 (4). If you want your Power of Attorney for Property to be a Continuing Power of Attorney for Property then you must say that the authority can be exercised during incapacity pursuant to the Substitute Decisions Act. 72 (1) If the applicant wishes an application to appoint a guardian of property to be dealt with under section 77 (summary disposition), it shall also be accompanied by two statements made in the prescribed form, one by an assessor and the other by an assessor or by a person who knows the person alleged to be incapable and has been in personal contact with him or her during the twelve months before the notice of application was issued. Capacity to give power of attorney for personal care. Capacity establishes the legal right to consent to or refuse medical treatment, choose housing arrangements and manage one's money. (“testament”) 1992, c. 30, s. 1 (1); 1996, c. 2, s. 3 (1-5); 2002, c. 17, Sched. His or her guardian of property, if known. (a) make the appointment for a limited period as the court considers appropriate; (b) impose such other conditions on the appointment as the court considers appropriate. 1992, c. 30, s. 22 (3). Motion to terminate guardianship of the person. (5) As soon as he or she receives the copy of the certificate, the Public Guardian and Trustee is the person’s statutory guardian of property. 1992, c. 30, s. 48 (4); 1996, c. 2, s. 31 (3). 1992, c. 30, s. 69 (5); 1996, c. 2, s. 45 (4). One of the joint statutory guardians of property dies, becomes incapable of managing property or gives notice to the Public Guardian and Trustee of his or her resignation. 1996, c. 2, s. 16 (1). 3. 1992, c. 30, s. 7 (5); 1996, c. 2, s. 4 (3). Note: Where the document is completed as part of an application for court appointed guardianship of property, please insert general heading and court file number. Motion to terminate guardianship of property. (a) knows what kind of property he or she has and its approximate value; (b) is aware of obligations owed to his or her dependants; (c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney; (d) knows that the attorney must account for his or her dealings with the person’s property; (e) knows that he or she may, if capable, revoke the continuing power of attorney; (f) appreciates that unless the attorney manages the property prudently its value may decline; and. 1996, c. 2, s. 11. 1992, c. 30, s. 74 (2). Substitute Health Care Decision Makers and making a consequential amendment to another Act PART I Short Title and Interpretation Short title 1 This Act may be cited as The Health Care Directives and Substitute Health Care Decision Makers Act. 2. 1996, c. 2, s. 32 (1). 87 (1) The Public Guardian and Trustee may appoint volunteers to provide advice and assistance under this Act. The ability to make these types of decisions is termed capacity and the decisions are termed consent. 1992, c. 30, s. 90; 1996, c. 2, s. 60 (1-3); 2004, c. 3, Sched. The Substitute Decisions Act (SDA) was passed unanimously by the Ontario Legislature in December 1992 after many years of study and public consultation. 2, s. 71 (7). (b) the person in respect of whom the power of entry is being exercised or is sought to be exercised. 3. The proposed guardian of property. Bulletin 00-98-08, “ Procedures for Substitute Health Care Decision Making ”, issued on November 30, 1998, detailed the applicable standards for surrogate decision-making for individuals with mental retardation over 18 years of age. (7) The power of attorney may contain instructions with respect to the decisions the attorney is authorized to make. (i) an allegation was made that the person was incapable of personal care and that serious adverse effects were occurring or might occur as a result. Our staff can't provide legal advice, interpret the law or conduct research. 4. 5. 4, s. 57 (1)), (c) a detention facility maintained under section 16.1 of the Police Services Act, or, Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) of the definition of “facility” in subsection 1 (1) of the Act is repealed. 15, s. 59. 1992, c. 30, s. 86 (3). 1996, c. 2, s. 17. (b) appreciates that the person may need to have the proposed attorney make decisions for the person. (2) Subsection (1) does not apply to the incapable person’s spouse, partner or relative or to the following persons: 3. 1992, c. 30, s. 24 (6). 1992, c. 30, s. 7 (2). (2) The Public Guardian and Trustee shall investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result. A Guide to the SDA- English for Internet Posting.doc 1992, c. 30, s. 53 (2). 10 (1) A continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. (6) The warrant authorizes the Public Guardian and Trustee to. B, s. 22 (4). 1992, c. 30, s. 73 (1); 1996, c. 2, s. 49 (1). (a) the person’s guardian of property or guardian of the person; (b) the person’s attorney under a power of attorney that confers authority in respect of the person’s property or under a power of attorney for personal care; (c) a member of the College of a health profession as defined in the Regulated Health Professions Act, 1991; (e) a person who operates a controlled-access residence; (f) a bank, loan or trust corporation, credit union or other financial institution; (i) any other person or class of persons designated by the regulations. (5) An assessor who performs an assessment of a person’s capacity shall give the person written notice of the assessor’s findings. (3) The continuing power of attorney may name the Public Guardian and Trustee as attorney if his or her consent in writing is obtained before the power of attorney is executed. Decisions under Health Care Consent Act, 1996. 1996, c. 2, s. 36 (3). This section offers an overview of Substitute Decisions Act, 1992 under Canadian law, reporting on the provincial jurisdiction differences. 2006, c. 19, Sched. 6. (2) The registrar of the court shall submit the notice of application or notice of motion, and the accompanying documents, to a judge of the court if. (3) An application or motion under this section may be made by the incapable person’s guardian of the person, attorney under a power of attorney for personal care, dependant, guardian of property or attorney under a continuing power of attorney, by the Public Guardian and Trustee, or by any other person with leave of the court. The proposed guardian of the person. (a) indicate that its maker is of the opinion that the person is incapable of managing property, and set out the facts on which the opinion is based; and. A Guide to the SDA- English for Internet Posting.doc (Read-Only) - Microsoft Word 2, s. 71 (5). 5. landaua 2, s. 71 (3). Join our expert faculty to unpack the intricacies, as they guide you through the role of section 3 counsel from when to seek an appointment order to how to determine when the role is at an end. (2) A motion under subsection (1) may be made by the guardian, the applicant in the proceeding in which the guardian was appointed, or any person who was entitled under section 69 to be served with notice of that proceeding. 1992, c. 30, s. 42 (7). 4. (4) The following rules apply to expenditures under subsection (3): 1. 1992, c. 30, s. 66 (14). (3.1) If, as a result of the investigation, the Public Guardian and Trustee has reasonable grounds to believe that a person is incapable of personal care and that the prompt appointment of a temporary guardian of the person is required to prevent serious adverse effects, the Public Guardian and Trustee shall apply to the court for an order appointing him or her as the incapable person’s temporary guardian of the person. 9, s. 120 (2)), Note: On a day to be named by proclamation of the Lieutenant Governor, the Schedule to the Act is amended by adding “Correctional Services and Reintegration Act, 2018” and by striking out “Ministry of Correctional Services Act”. (9) If the Public Guardian and Trustee obtains access to one or more records under this section, the Public Guardian and Trustee shall, unless it is not appropriate in the circumstances, notify the person who is alleged to be incapable as soon as reasonably possible that. (b) police detention facilities provided by a municipality under the Police Services Act, Note: On a day to be named by proclamation of the Lieutenant Governor, clause (b) of the definition of “facility” in subsection 1 (1) of the Act is repealed. (2) If the Public Guardian and Trustee exercises powers under subsection (1), it may be with respect to all of the property or such portion of the property as the Public Guardian and Trustee determines. 5, s. 73). 1992, c. 30, s. 83 (3). 1992, c. 30, s. 66 (3); 1996, c. 2, s. 43 (2). 1996, c. 2, s. 39. (3) Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by, (a) the person’s guardian of property; or. 1996, c. 2, s. 32 (1). 2009, c. 33, Sched. (4) The court shall take into consideration the incapable person’s current wishes, if they can be ascertained, and the closeness of the applicant’s relationship to the person. 36 (1) The doctrine of ademption does not apply to property that is subject to a specific testamentary gift and that a guardian of property disposes of under this Act, and anyone who would have acquired a right to the property on the death of the incapable person is entitled to receive from the residue of the estate the equivalent of a corresponding right in the proceeds of the disposition of the property, without interest. 1992, c. 30, s. 11; 1996, c. 2, s. 7 (1); 2016, c. 5, Sched. 26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. ii. 20.2 (1) A person who has a statutory guardian of property may apply to the Consent and Capacity Board for a review of a finding that the person is incapable of managing property, (a) in the case of a statutory guardianship created under section 15, if the finding was made by an assessor, or by a physician who has authority to issue certificates of incapacity under the Mental Health Act, following an assessment of capacity that was performed after a notice of continuance was issued in respect of the person under subsection 57 (2) of the Mental Health Act; or. The ability to make these types of decisions is termed capacity and the decisions are termed consent.Capacity establishes the legal right to consent to or refuse medical treatment, choose housing arrangements and manage one's money. 1996, c. 2, s. 58. (11) A reference in this section to the Public Guardian and Trustee includes any person he or she designates for the purpose of this section. 1992, c. 30, s. 18 (3); 1996, c. 2, s. 12 (4). setting out the facts on which the opinion is based. (16) If there is a guardianship plan, it may be amended from time to time with the Public Guardian and Trustee’s approval. 11 (1) An attorney under a continuing power of attorney may resign but, if the attorney has acted under the power of attorney, the resignation is not effective until the attorney delivers a copy of the resignation to. 88 The Public Guardian and Trustee may mediate. Guardianship applications are made to the Superior Court of Justice. (12) A reference in this section to the Public Guardian and Trustee includes any person he or she designates for the purpose of this section. 2006, c. 34, s. 24 (1). A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child. B, s. 22 (9). See: 1996, c. 2, s. 4 (5). 1992, c. 30, s. 83 (1). The person alleged to be incapable of managing property. (See: 2019, c. 1, Sched. No amending legislation available on CanLII. 1996, c. 2, s. 33 (3). Substitute Decisions Act, 1992. (4) For the purposes of this section, a breach of duty includes a breach of a duty or other obligation by a guardian acting as a director of a corporation, whether arising in equity, at common law or by statute. 2, s. 71 (3); 2016, c. 5, Sched. ; 2001, c. 13, s. 30; 2006, c. 19, Sched. 1992, c. 30, s. 58 (2). application/pdf (b) the Public Guardian and Trustee becomes the person’s guardian of property or guardian of the person. (2) The persons referred to in subsection 10 (2) shall not be witnesses. The Public Guardian and Trustee will also seek the least intrusive solution so that if a power of attorney as created while the elderly person was capable, the court will sometimes impose conditions on the attorney such as greater financial reporting requirements instead of opting for the … (4) The court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act. (3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. (3) Subsections (1) and (2) are subject to a contrary intention in the incapable person’s will. (2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 1992, c. 30, s. 72 (3). 3. 2, s. 71 (9). there is evidence that the person made similar expenditures when capable. (a) has the same effect in Ontario as if it were an order under this Act appointing a guardian of property or guardian of the person, as the case may be; (b) is subject in Ontario to any condition imposed by the court that the court may impose under this Act on an order appointing a guardian of property or guardian of the person, as the case may be; and. 7. Consolidation Period: From July 8, 2020 to the e-Laws currency date. Legislative History: 101/96, 159/00, 411/12, 272/15. (19) No proceeding for damages shall be commenced against a guardian for anything done or omitted in good faith in connection with the guardian’s powers and duties under this Act. 1992, c. 30, s. 2 (2). (3) The order shall specify the place or places where the assessment is to be performed. 1992, c. 30, s. 66 (19). A provision that authorizes the attorney and other persons under the direction of the attorney to use force that is necessary and reasonable in the circumstances. 1992, c. 30, s. 74 (3). 1992, c. 30, s. 89 (3); 1996, c. 2, s. 59 (2). The guardian of the person. (2) If the court is satisfied that a guardian of property who has committed a breach of duty has nevertheless acted honestly, reasonably and diligently, it may relieve the guardian from all or part of the liability. (2) If a statutory guardian of property has reason to believe that a person entitled to notice of the guardian’s resignation under subparagraph 2 i of subsection (1) needs it to be provided in an accessible format, or if the person has requested an accessible format, the guardian shall provide the person with a copy of the notice in a format that is accessible to that person. (ii) was made by an assessor following an assessment of capacity that was performed after the creation of the statutory guardianship. The attorney under his or her continuing power of attorney, if known. (3) The party moving for the restraining order shall serve notice of the motion on the person against whom the order is sought. See: 1996, c. 2, s. 77. Chapter 4: Consent, Capacity and Substitute Decision-Makers Page 1 of 12 2009, c. 33, Sched. (5) If the Public Guardian and Trustee is the applicant or the respondent, the court shall grant the application, unless it is satisfied that the application is frivolous or vexatious. (c) there is no other suitable person who is available and willing to be appointed. 1992, c. 30, s. 82 (9). 1992, c. 30, s. 42 (5). (a) a facility governed or funded under an Act mentioned in the Schedule. 1992, c. 30, s. 65; 1996, c. 2, s. 42. 1996, c. 2, s. 10. 1996, c. 2, s. 54. (3) The Public Guardian and Trustee is not entitled to have access to a record or part of a record whose disclosure could reasonably be expected to produce one of the results described in subsection 14 (1) of the Freedom of Information and Protection of Privacy Act. The Public Guardian and Trustee is not entitled to have access to any information in the record that is personal information, as defined in the Freedom of Information and Protection of Privacy Act, relating to an individual other than the person who is alleged to be incapable. (2) If legal representation is provided for a person in accordance with clause (1) (a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees. 1996, c. 2, s. 10. 1992, c. 30, s. 32 (10). (i) have cohabited for at least one year, (ii) are together the parents of a child, or, (iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”). 1992, c. 30, s. 32 (9). (3) If the guardian has custodial power over the person and the court is satisfied that it may be necessary to apprehend him or her, the court may in its order authorize the guardian to do so; in that case the guardian may, with the assistance of a police officer, enter the premises specified in the order, between 9 a.m. and 4 p.m. or during the hours specified in the order, and search for and remove the person, using such force as may be necessary. 4 This Part applies to decisions on behalf of persons who are at least eighteen years old. 1996, c. 2, s. 58. 65 Part III (Procedure) applies to motions to terminate guardianships of the person. 45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. 1992, c. 30, s. 24 (4). 2016, c. 5, Sched. (See: 2019, c. 1, Sched. (2) The application shall be in the prescribed form. 2. 81 (1) When an order for an assessment has been made under section 79, the court may, on motion, order the applicant in the proceeding in which the person’s capacity is in issue, together with a police officer, to apprehend the person, take him or her into custody and bring him or her to a specified place to be assessed there, if the court is satisfied that. Capacity if the person alleged to be given access to the incapable person into! Person whose property is and will remain sufficient to satisfy the person s. Physician who made the finding of incapacity ; 1996, c. 30, s. 82 ( )!, 2 ) provisions of this Act comes to the person as soon as.... Which a record is subject who dies officer for assistance in executing the warrant is for! 1 other types substitute decisions act decisions is termed capacity and the decisions are termed.. 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