The loss of mental capacity is a difficult topic, especially when it happens to those closest to us. However, it is not as rare as one may think. In Canada, approximately 402,000, or 7.1% of seniors (defined as 65 and older), live with dementia, including Alzheimer’s disease.  

Dementia is not the sole cause of loss of mental capacity, but amongst seniors it is an unfortunately common one. In Ontario, the law has created provisions to address the care of individuals who lose the capacity to make decisions and properly care for themselves. The Substitute Decisions Act (the “SDA”) is one of the main sources in this regard in Ontario and enables individuals to grant powers of attorney for property and personal care.  

The SDA sets out formal criteria that address the granting of powers of attorney, guardianships and the substitution of a guardian, amongst a variety of other issues. It also touches on the duties of a guardian or attorney to ensure the best interests of an incapable individual are always considered in reaching any decision.  

An article we recently read, “Engaging People Living with Dementia in Decision-Making”, highlighted an aspect that is important to remember when one has the responsibility of caring for an incapable individual. The SDA and power of attorney instruments are clear on the responsibilities owed to the person being cared for. Nevertheless, these are legal questions and can cloud the fact that one should always try to be empathetic to the needs and wants of the incapable individual, even when they may not be able to clearly articulate their thoughts and emotions.  

The loss of agency over one’s life can have a profound impact. However, making the effort to respect, listen and engage with people that suffer from dementia serves to improve the care one provides them, and ensures their autonomy and dignity are preserved, which have been stated by the courts as a purpose of the SDA. 

Thank you for reading and have a great day! 

Suzana Popovic-Montag and Raphael Leitz