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Incapacity Planning

Just as important as planning for death is planning for temporary or permanent incapacity. It is an essential component of every estate plan.

It is important to appoint a substitute decision-maker who will be able to look after your financial affairs and be able to make personal care decisions if you are unable to do so. In Ontario, two types of documents are used for this purpose:

  1. A Power of Attorney for Property
  2. A Power of Attorney for Personal Care

In a Power of Attorney for Property, you appoint a person to look after your financial affairs while you are alive. Unless specific restrictions are listed in the Power of Attorney document, the attorney named in the Power of Attorney will have power to deal with all of your assets, with limited exceptions. Needless to say, you should have the utmost trust and confidence in the person you appoint as your attorney for property.

In a Power of Attorney for Personal Care, you appoint a person to make your personal care decisions. You should appoint someone who will make decisions that are in your best interests and subject to any directives that you may provide while you are alive and capable. The attorney for personal care is generally given the ability to give or refuse medical treatment on your behalf. The attorney for personal care may also arrange nursing care or move you to a nursing home or other care facility.

In addition to completing a Power of Attorney for Personal Care, you may also prepare an advance directive called a Living Will. This directive is often found in the Power of Attorney for Personal Care and communicates your wishes about your treatment plan. It has become quite common to include a general statement of one’s values and to include a statement that the person does not want heroic measures to be taken or that the person does not wish to be kept alive by artificial life support.

If a person is incapable of completing a Power of Attorney but requires someone to manage his or her assets or personal care, it may be necessary for a family member to apply to court to be appointed a guardian of property or guardian of personal care.  

Our estates lawyers have extensive experience dealing with issues related to incapacity, including the preparation of powers of attorney or applying to court for the appointment of a guardian of property or guardian of personal care.

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43 Queen Street West, Brampton, ON, Canada L6Y 1L9
Telephone: 905.451.3040 Fax: 905.451.5058 Email: lls@lawrences.com

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