Mental Incompetency Litigation

Mental Incompetency Litigation

In Ontario, several statutes stipulate who may make decisions for incapable persons, and the manner in which decisions are to be made respecting the personal care and property of individuals who are incapable of managing their own personal care and/or property. These statutes include the Substitute Decisions Act; the Health Care Consent Act; and the Powers of Attorney Act. An individual may plan for his or her own capacity by executing a power of attorney for personal care and a continuing power of attorney for property in favour of his or her own personal choice of substitute decision maker. The document must be prepared in accordance with the statutory requirements set out in the Substitute Decisions Act.

Where an individual has not made a grant of power of attorney or, if the power of attorney is found deficient or the attorney is unable or unwilling to act, an application may be made to the court for the appointment of a guardian of the person and guardian of property for a mentally incapable person. In certain instances the Public Guardian and Trustee may become the statutory guardian of an incapable person's property and application may be made by an individual to replace the Public Guardian and Trustee as statutory guardian of property.