TRUST & ESTATE SERVICES

When Life Demands Plan B

Learn about the role of a court-appointed guardian when you, or someone you care about, suddenly lose mental capacity without powers of attorney in place.

10.01.2017 - Fiduciary Trust Canada

When Life Demands Plan B

You hear a lot of talk about powers of attorney, which makes sense given their critical role in comprehensive succession and estate planning. A “POA” is commonly used to support a person who no longer has the mental capacity to make certain decisions. As the adjacent POA Snapshot highlights, powers of attorney can help address various situations. What happens when life intervenes and you lose mental capacity before completing your powers of attorney? Or, what if your favourite uncle, cousin or close friend faces this situation? As with a will, once capacity is lost, it is no longer possible to sign a power of attorney. What back-up option do you and helping family or friends have?

The answer lies with the courts and, to differing degrees, oversight through the provincial or territorial offices of the Public Guardian and Trustee. Through the court process an individual will be appointed as guardian, trustee, curator or tutor. (Be aware, the name of the office and role varies across the country). The most obvious difference between a guardianship and a power of attorney is the process of structuring and implementing each option. The guardianship process is also generally more costly than drafting a power of attorney.

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