Planning for incapacity – what you need to know

Planning for incapacity – what you need to know

If you can’t decide, who will decide for you?

One in 10 Ontarians over the age of 65 will develop Alzheimer’s disease or another dementia, yet less than 1/3 of Canadians have made legal arrangements to ensure their care. The Alzheimer Society of Ontario has partnered with the Ontario Bar Association to promote Make a Will Month in November, encouraging Ontarians to make a will now so they can rest assured later.

Planning for incapacity is like purchasing insurance. It involves planning for unpleasant contingencies. If dementia strikes and you lose your ability to manage your own affairs, you will need someone to act as your substitute decision maker. That’s why it’s worthwhile to think about who you would like to act as your attorney for personal care or property while you still can.[1]

If you don’t complete your Power of Attorney documents while you are still capable, your family members may have to apply to the court to have a substitute decision maker appointed. In Ontario those persons are called guardians (for Personal Care and/or for Property). This court process is considerably more time-consuming, expensive and stressful than making the decisions yourself.

Having these plans in place is a kindness to those you care about. These plans also offer the chance to communicate your wishes, helping to ensure that the end of your life will be in keeping with what you wanted.

Continuing Power of Attorney for Property

An Attorney for Property’s duties and authority often include:

  • Ensuring that bills are paid and accounts kept in good standing;
  • Applying for pension and insurance benefits and making sure income is used for your benefit and care;
  • Maintaining homes, adapting them to your changing needs or, if necessary, selling them to pay for care;
  • Signing legal papers including leases, real estate documents and contracts for services.

Power of Attorney for Personal Care

An Attorney for Personal Care is charged with making decisions and acting on wishes relating to:

  • Where you live
  • What sorts of medical treatments are pursued
  • Consent to those treatments
  • End of life decision.

For both personal care and property, consider the following questions and speak to your legal advisor about how to prepare the documents that reflect your values and wishes:

  • Who do you trust to be organized and honest with your financial affairs?
  • Who do you trust to respect your expressed wishes for decisions such as future health care and living arrangements?
  • If you are considering multiple attorneys, do those individuals get along?
  • Do your proposed attorneys live nearby so that they can help in an emergency?
  • Are your proposed attorneys likely to communicate well with your family and friends, will they foster your independence and put your needs ahead of their own wishes?
  • Have you talked about your wishes with your substitute decision makers, in particular, and your family as a whole?
  • Do you have your financial information gathered so that your substitute decision maker can locate your assets, your creditors and make sure that your financial interests are looked after?

After considering these questions, I encourage you to contact a lawyer in your community to assist you in planning for incapacity.

Learn more about Make A Will Month by visiting

Jane-martinJane E. Martin, Barrister & Solicitor

Chair, Ontario Bar Association Trusts & Estates Law Section

Dickson MacGregor Appell LLP



[1] The terminology used for these documents varies across the country. In British Columbia a “Representation Agreement” is signed to authorize representatives to make decisions for the legal affairs, financial affairs and personal care and health care needs for an adult who has lost capacity. Some provinces also have advance directives and living wills. Regardless of the names of the documents, they function to allow someone to assist you if you become incapable due to illness or accident.

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