In the world of estates, trusts, and capacity law, there are a number of terms that we are accustomed to using that may require explanation when communicating with clients.  For example, the average non-lawyer cannot be expected to appreciate the difference between a “guardian” and a “litigation guardian” when confronted with these terms and struggling to cope with a stressful situation in which they are required to obtain court assistance in preserving the well-being of a loved one. 

 Today, I will review some key terms that we see in capacity-related litigation that may require explanation before using these terms with clients or lawyers specializing in other areas of law:

–“Mental Capacity”: The legal standard relevant to a person’s ability to make a certain type of decision.  While someone may be incapable of making all types of decisions raised in a proceeding, it is important that we do not suggest to clients that it is a global standard that applies to all decisions.  Mental capacity is time, situation, and task-specific.  All adults are presumed to be capable of managing property and making personal care decisions under Section 2 of the Substitute Decisions Act, 1992.

–“Declaration of incapacity”: A declaration by a judge that a person is incapable of making a certain type of decision (such as managing property or making personal care decisions).  Only the court can make a declaration of incapacity.  As only a court can declare that a person is incapable, any other view as to a person’s incapacity, including that of a designated capacity assessor, is an “opinion”.

–“Guardian”: A guardian of property and/or guardian of the person is appointed by the court as a substitute decision-maker for an adult who is incapable of making those decisions.  A guardian is bound by the terms of the order appointing them as well as those of the Management Plan (property management) and/or Guardianship Plan (personal care) filed in support of their guardianship application.

–“Power of Attorney”: The document made by a person (the grantor) authorizing someone else to make decisions on their behalf.  In Ontario, we have three types of Powers of Attorney:

1. a Power of Attorney for Property, which applies to decisions related to finances and property while someone remains capable of managing their own property (sometimes for convenience rather than actual need);  
2. a Continuing Power of Attorney for Property, which comes into effect or continues to be effective during a period of the grantor’s incapacity to manage property; and
3. a Power of Attorney for Personal Care, which applies to personal care decisions, including (but not limited to) decisions to consent to medical treatment. 

Each type of document can specify the terms of its use.  Clients and some lawyers may use the term POA to refer to the person named under the document, but (technically, at least), this is a reference to the document itself.

–“Attorney”: The person authorized to assist as a substitute decision-maker under a Power of Attorney document.  There are attorneys for property and attorneys for personal care.  In this context, the meaning of “attorney” is not the same as “lawyer”, though we do see situations where an attorney for property is also a lawyer.  

–“Section 3 Counsel”: This refers to Section 3 of the Substitute Decisions Act, 1992, which authorizes the court to direct the Public Guardian and Trustee to arrange for the appointment of counsel for a person whose capacity is in question in a capacity-related proceeding. The person is deemed to have capacity to retain and instruct Section 3 Counsel, who can share their client’s views with other parties and/or the court.

–“Litigation Guardian”: Not to be confused with a guardian of property or guardian of personal care, a litigation guardian represents the interests of a person under legal disability (because of age or mental incapacity) for the purposes of a legal proceeding. Subject to certain exceptions, the Rules of Civil Procedure require a party to a legal proceeding under disability to have a litigation guardian. The litigation guardian will often be the person’s guardian of property or attorney for property, but that is not always the case.

–“Court approval”: The court must approve a settlement that impacts the rights of a person under legal disability pursuant to Rule 7.08 of the Rules of Civil Procedure.  The court, on reviewing the affidavits sworn by the litigation guardian and the lawyer for the litigation guardian, must be satisfied that the settlement is in the best interests of the person under disability before granting a judgment approving (and often implementing) the settlement.

Thank you for reading,

 Nick Esterbauer