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Substitute Decision-Making for Property

real estate lawyer ottawa stitttsvilleIn a blog posted last week, we explored the different types of substitute decision-makers that can be appointed with respect to personal care. In this blog, we will turn our attention to substitute decision-makers with respect to property.

I’m not sure if my dad has the capacity to sign a Power of Attorney for Property?

In a Power of Attorney for Property, the ‘grantor’ (the person signing the document) appoints one or more persons to make decisions on their behalf with respect to their property. In order to have the required mental capacity to sign a Power of Attorney for Property, among other things, the grantor must know what kind of property they have and its approximate value as well as appreciate the authority that they are giving to the Attorney.

The authority granted to the Attorney is subject to any terms and conditions set out in the Power of Attorney document itself.

What if someone can’t sign a Power of Attorney for Property?

Where an individual is not capable of signing a Power of Attorney for Property, there are three options for having a substitute decision-maker appointed:

  • Trusteeship: For various government benefits (such as ODSP and OAS), it is possible to apply directly to the responsible government department to be appointed as the trustee of the recipient’s benefits. However, this informal trusteeship would not give the trustee the authority to manage or make decisions with respect to any other aspect of the recipient’s property such as other bank or investment accounts, filing taxes, etc.
  • Guardian of Property: As with personal care, pursuant to the Substitute Decisions Act, it is possible to make an Application to Court to be appointed as an incapable person’s Guardian of Property. It is not always necessary to have a formal Court hearing. The Order signed by the judge will specify whether the extent of the Guardian’s authority over the incapable person’s Property. This option is meant to be a last resort.
  • Statutory Guardian for Property: This is an alternate route to obtaining guardianship. The process is set out in the Substitute Decisions Act. Generally speaking, it involves a request for an assessment of someone who is believed to be incapable of managing their property. If the individual is found to be incapable, the Public Guardian and Trustee automatically becomes as the individual’s statutory guardian of property. Certain family members are then able to make an application to replace the PGT as the individual’s guardian of property.

Careful consideration must be given to the choice of appropriate substitute decision-maker. Consult with an experienced professional who can assist you in navigating the available options.

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