Since April 1995, The Substitute Decisions Act has governed decision making on behalf of persons who are mentally or physically incapable of managing their property or their personal care. Substantial amendments to this legislation came into effect in March 1996. The Act provides rules for the appointment and regulation of individuals who make decisions for the property and personal care of others, such as a relative who becomes incompetent to manage their affairs.
When it is suspected that a person is incapable of managing property, a request may me made for an assessment of the person's capacity to be done by a registered assessor under the Substitute Decisions Act. If a person is found to be mentally or physically incompetent, the Public Guardian and Trustee automatically becomes the guardian of the person's property. If the person had previously made a Power of Attorney, however, the designated attorney can terminate the guardianship by filing a copy of the Power of Attorney with the guardian along with a written undertaking by the attorney to act in accordance with the Power of Attorney. If there is no Power of Attorney in effect, a spouse, or other relative, may apply to be appointed as guardian of the persons property. This will require the filing of a management plan, and the Public Guardian and Trustee may also require the posting of security.
In order for a Power of Attorney to be effective in the event of incompetency, it must explicity state that it is intended to continue during incompetency. The person granting the attorney must also be capable of granting an attorney at the time that the document is signed. Under the new law, this means that the grantor must show that he is aware of the nature and extent of his property, that he understands his obligations to his dependants and the nature of the power being granted to the attorney.
By preparing a Power of Attorney now, you can help ensure that your property is managed by someone you trust when you can no longer make the decisions for yourself.
For more information about Powers of Attorney for Property
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