The attorney you choose in your power of attorney documents can make decisions about your medical care, personal care, or property. But what happens if you lose capacity and don’t have one in place? Could a guardian step in instead?
In this article, we’ll break down the differences between power of attorney and guardianship in Canada, including how each role is appointed and what they’re responsible for.
What is a power of attorney?
A power of attorney (POA) is a legal document that grants an individual legal authority to make decisions on behalf of you, the grantor. This individual is called your attorney.
Types of power of attorney
There are generally two types of POAs, each designed to meet different needs:
- A Power of attorney for property gives your attorney the power to handle your financial and legal matters.
- Examples of responsibilities: paying your bills, selling property, filing taxes
- A Power of attorney for personal care gives your attorney the power to make healthcare and personal care decisions for you if you are mentally incapacitated and unable to communicate your wishes.
- Examples of responsibilities: Communicating the healthcare wishes documented in your living will or personal directive, helping manage your food, hygiene, and housing concerns
When and how it is used in Canada
A power of attorney for property document can either stop, continue, or start when you lose capacity. A power of attorney for personal care document can only start when you lose capacity.
A loss of capacity is defined as any physical or mental impairment that prevents you from making rational and responsible decisions related to your healthcare or personal assets. Incapacity can be temporary or permanent.
General power of attorney for property documents end immediately if you become mentally incapacitated or pass away. These are a type of POA for property, often used in situations where you’re unable to manage your legal and financial affairs while you’re travelling abroad for an extended period.
Enduring or continuing power of attorney for property documents continue even if you’re incapacitated, but stop if you pass away. This type of POA for property allows your appointed attorney to make decisions on your behalf if and when you become mentally incapable. For example, if you’re in a coma.
Powers of attorney for personal care documents only begin when you lose capacity. They can then continue until you pass away or regain capacity.
Can your attorney make decisions about your dependents?
No, your attorney’s decision-making authority only covers you, not your dependents. Only legal guardians can make decisions for children or other dependents that do not have the capacity to make decisions themselves.
When should I make power of attorney documents?
Every legal adult should have POAs in place. Some people think you only need to make one if you anticipate being unavailable or unable to manage your affairs because of age, illness, or travel.
But even if you don’t expect to ever need them in the future, having POAs in place gives you and your loved ones peace of mind knowing that should anything happen, your wishes are documented and you have a plan in place.
With Willful, you can make your powers of attorney for property and personal care, right from the comfort of home. Start for free today →
What is guardianship?
Guardianship refers to a legal relationship where someone appointed by the provincial court has the authority to make decisions for someone else who is unable to make decisions for themselves.
Someone may need a guardian because they are a minor or lack the capacity to make decisions themselves. A person with a guardian is called a ward.
A guardian assumes legal, moral, and financial responsibility for their ward.
Have you been named as a guardian? Learn more about what it means to be named a guardian →
What are the different types of guardianship in Canada?
Guardianship can be categorized into two main types:
- Guardianship for minors, where parents or appointed guardians manage the personal and financial well-being of children under the age of majority.
- Guardianship for adults, where an appointed person manages the financial and personal care needs of a legal adult who is deemed mentally incapable of managing their own needs.
Legal process for establishing guardianship in Canada
Parents are the default guardians for their children and are responsible for their well-being, education, support and maintenance.
If parents are unable to be the guardians of their children, the courts must appoint one. If the parents or existing guardians have passed away, their will could also appoint a guardian.
Appointing a guardian for your children through a will
In your legal will, you can choose who should be the guardian of your children as well as decide who should be your estate executor, pet guardian, and beneficiaries.
Without a will, the courts will decide who becomes a guardian for the children, which may lead to family disputes and court battles.
With a will, someone is granted temporary guardianship based on their appointment in the deceased’s will, and then they can get court approval to continue that guardianship later on.
Appointing a guardian through the courts
To officially become someone’s guardian, with or without an appointment through a will, you would need to file a legal application to become someone’s guardian through your provincial court. The application is often different depending on whether you’re applying to be the guardian of a minor or an adult.
In Ontario, for example, there are different forms for applying to be someone’s guardian of property or a guardian of the person.
How do you prove legal guardianship in Canada?
Legal guardianship is established through a court order, which is supported by evidence such as medical assessments and legal documents proving your ability to be a guardian and the ward’s circumstances for needing guardianship.
What happens if there’s no one to take guardianship?
If there is no one suitable or available to act as a guardian, the government will appoint a public guardian. Public guardians are professionals who work on behalf of the government to manage the personal and financial affairs of individuals who cannot do so themselves.
Key differences between power of attorney and guardianship
While both arrangements appoint substitute decision-makers, POAs and guardianship can differ in their scope, authority, and how they are established.
What are the differences between a guardian and an attorney for personal care for an adult?
- You appoint an attorney for personal care while you are mentally capable, while a guardian is appointed by the court only after you have been deemed a mentally incapable person and there is no valid power of attorney in place.
- You choose who becomes your attorney. The court chooses who becomes your guardian.
- An attorney for personal care can act immediately if they have the authority to do so, while a guardian can only act after they are officially appointed by the court.
- An attorney for personal care will act based on your personal directive or power of attorney for personal care document, and make decisions about your health and personal care, food, hygiene, and housing. A guardian is not limited to just personal care and may also have authority over your legal and financial decisions.
Can an attorney be a litigation guardian?
Yes, either an attorney or a guardian can act as a litigation guardian and represent you in legal proceedings if it falls within the scope of their authority to do so.
Common misconceptions about POAs and guardianship
Myth 1: Attorneys and guardians are the same thing
A power of attorney is a legal arrangement made ahead of time while you are mentally capable and able to choose who your substitute decision-maker should be. On the other hand, guardianship is a court-mandated role established only after you lose capacity and have no POAs in place.
Myth 2: POAs are only for the elderly or those facing health issues
POAs are important for everyone, whether you’re young or old because the unexpected can happen to anyone. It’s always best to be prepared.
Myth 3: An attorney can still manage your assets after you pass away
Once you pass away, all POAs in your name become void. Your attorneys no longer have the power to make decisions on your behalf. Your executor is responsible for managing your assets and distributing your estate.
Myth 4: POAs grant unlimited authority
Your attorney’s authority is limited to what you specify in your power of attorney documents, which you can change based on your preferences.
Myth 5: Guardianship is only for minors
Guardianship can be for minors or adults who lack the capacity to make decisions independently due to disability, illness, or age-related conditions.
How to choose between power of attorney and guardianship
The decision between these two arrangements depends on your circumstances and priorities.
Factors to consider
- Level of incapacity: If someone is already incapable, they cannot make power of attorney documents. Guardianship will be the only option available.
- Proactive vs. reactive approach: Making POAs gives you the opportunity to be proactive about your future, including choosing your attorney and documenting the wishes you want them to follow. Guardianship for adults who lack capacity, on the other hand, is a reactive approach when there are no POAs in place.
- Legal complexity and cost: Guardianship involves court applications and proceedings, which may be costly and time-consuming, while POAs can be straightforward to establish and much more affordable.
Guardianship for cases of incapacity should often be a last resort due to its court-mandated nature, lack of choice, cost, and additional stress involved. POAs offer flexibility and can be tailored to meet your specific wants and needs.
It’s also important to know that a POA can be revoked at any time, provided you remain mentally capable of doing so.
Create your will and POAs today
Planning ahead can make all the difference for both you and your loved ones.
By creating a will and powers of attorney with Willful, you can appoint guardians to look after your dependents and attorneys to look after yourself and your assets. That’s peace of mind for the whole family, and it comes at a fraction of the cost of a lawyer.
Plus, Willful documents have free unlimited updates, so it’s easy to change them if you ever change your mind about who your guardians or attorneys are.
