Guardianships and Tests for Capacity

July 14, 2015 Joshua Eisen Guardianship Tags: , 0 Comments

Last week, news sources reported that a judge of the Los Angeles County Superior Court appointed a conservator over the affairs of former Eagles bassist, Randy Meisner.  The conservator was appointed to help make decisions about Mr. Meisner’s medical care, but not about his property.  The conservatorship is temporary for now, pending a further hearing this fall which may determine whether or not it should be made permanent.

In Ontario, our closest equivalent to a conservatorship is a guardianship.  There are two types of guardianships – one for personal care and another for property.  A person may apply to the Court to be appointed as someone’s guardian for property, for personal care, or both.  There is an alternative procedure, whereby the Public Guardian and Trustee will become a person’s statutory guardian upon receipt of a certificate of incapacity issued by a capacity assessor.

The tests for each kind of capacity are set out in Ontario’s Substitute Decisions Act, 1992.  A person is incapable with respect to making decisions about the management of property if that person is unable to understand information that is relevant to making a decision in the management of his or her property, or if the person is unable to appreciate the reasonably foreseeable consequences of a decision (or lack thereof).

On the personal care side, a guardian may be appointed if the person is incapable of understanding information relevant to making a decision concerning his or her health care, nutrition, shelter, clothing, hygiene or safety, or is if the person is unable to appreciate the reasonably foreseeable consequences of a decision with respect to any of these.

The California ruling dealt with personal care decisions but did not appoint a conservator for property.  Property decisions are sometimes thought of as being more cognitively demanding.  However, Mr. Meisner’s story is a good reminder that each kind of capacity is its own creature.  One cannot assume that a person who may be found incapable with respect to one function will necessarily be found incapable with respect to another.

Ontario’s Act creates another set of standards for the capacity to grant powers of attorney for property and yet another for granting powers of attorney for personal care.  A person may be incapable of managing property or personal care, but may still be capable of appointing another person to make those decisions on his or her behalf.  Creating a power of attorney while capable of doing so empowers the person to decide who will be responsible for making decisions and to provide the attorney with instruction or guidance in the event that difficult decisions need to be made.  Having powers of attorney in place can sometimes eliminate the need for guardianship proceedings, which can be a difficult and costly process.

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