I recently met with Gary and Sue (not their real names) at my law office in Stittsville, part of the City of Ottawa. Their son, who had been diagnosed with autism as a young child, was just about to turn 18. They had many of the same questions as other parents with a child with a disability have when approaching this milestone birthday and transition to adulthood. In particular, Gary and Sue had questions concerning powers of attorney and guardianship and how they differ.
I explained that a power of attorney is appointed by a person (the “grantor”) when the grantor is mentally capable of making the appointment by signing a power of attorney document. There is a specific list of mental capacity criteria that must be met. A guardian, on the other hand, is appointed by operation of law after a person has become mentally incapable and does not have a valid, signed power of attorney document.
I made it clear to Gary and Sue that the duties and responsibilities of an attorney and a guardian are quite similar. However, there can be significant differences as the power of attorney document can set out other requirements or give more discretion than might otherwise be available to a guardian. An attorney is not required to ‘pass their accounts’ (allow a Court to audit their records) whereas a guardian may have to pass their accounts on a regular basis. The costs associated with passing accounts are charged to the incapable person.
Gary and Sue had also heard some acronyms, SDA and PGT, being used but weren’t sure what they meant. I clarified that the Substitute Decisions Act (“SDA”) governs the appointment of substitute decision-makers, including guardians and powers of attorney. The Public Guardian and Trustee (“PGT”) is the government office that is responsible for ensuring the Substitute Decisions Act (SDA) is given effect. The PGT acts as a last resort substitute decision-maker for incapable persons, maintains a register of guardians, and investigates reports of abuse or neglect of incapable persons.
If you are the parent or grandparent of a young person with disabilities and have many of the same questions as Gary and Sue, we would invite you to attend this evening’s special event for families interested in transition resources for young people with disabilities hosted by The Ottawa Transition Forum. At 6:30 p.m., Natasha will be giving an informative presentation entitled “Understanding Adult Guardianship: What Parents Need To Know”. Please visit http://www.octc.ca/documents/In%20transition%20invitation%202013.pdf for further details.
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Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
