As your child with a disability approaches the age of 18 and transitions into adulthood, you may no longer be able to make legally binding decisions on their behalf. Adults who are unable to handle basic transactions such as paying for housing or food are extremely vulnerable. So, if you have a child or family member with disabilities, you need to consider the following questions:
Can your child’s disability limit his or her ability to make sound decisions?
Can your child be subject to undue influence?
If the answer is “yes”, how can you retain the decision-making power to protect your child‘s well-being and how can you ensure that your child will be well taken care of after you are gone? One solution is legal guardianship.
Please note that if you live in British Columbia (B.C.), there are additional options available to support decision making known as the Representation Agreement Act. For more information on Representation Agreements and decision making for individuals without legal capacity, contact Nidus (www.nidus.ca), or a B.C. focused lawyer.
What is Legal Guardianship?
Legal guardianship for adults with developmental disabilities is a powerful legal instrument that allows parents or close family members to manage the affairs and make decisions on that person's behalf for their benefit. There are two types of guardianship:
One is for property and the other is for person. Both can be sought simultaneously. A guardian of property is appointed to manage financial affairs of a person who is mentally incapable of doing so. A guardian of person makes decisions over care, health, and safety of the incapable person.
Because guardianship provides broad powers, the court will appoint a guardian if it is satisfied that there are no alternatives and other less restrictive ways to act on behalf of the incapable person, such as a Power of Attorney.
Powers of Attorney vs. Guardianship
Although the duties and powers of “an attorney” and “guardian” are essentially the same, there are some major differences. A power of attorney can be granted by someone who is mentally capable and may continue to be valid throughout the subsequent finding of incapacity. Guardianship is granted if a person is incapable. Guardianship essentially transfers most powers of the incapable person to a legal guardian who voluntarily offers to take the role of a fiduciary, which is someone who has a legal obligation to act in the best interest of the incapable person.
A person who grants a power of attorney chooses someone who may agree or refuse to accept this role. Powers of attorney are terminated when a court appoints a guardian. A power of attorney can have restrictions and conditions. For example, a power of attorney for property can be limited to a specific transaction, and a power of attorney for personal care can be limited to certain treatments. As a guardian you have broad powers while acting on the incapable person’s behalf for the benefit of the incapable person. For example, guardians can open or close bank accounts, redirect pension or other income, apply for benefits, pay bills, authorize transactions, instruct doctors to provide necessary treatments or administer medications to improve the incapable person's wellbeing, etc. Depending on the circumstances, there are risks associated with only relying on powers of attorney and not seeking guardianship for an incapable person.
Why Legal Guardianship?
Legal guardianship can help provide a smooth transition of care for a child with a disability. It can also be in place to provide peace of mind after you’re gone. Parents of children with a disability often decide to pursue legal guardianship when they reach that ‘awkward age’ where they aren’t so old that they anticipate imminent death, but they do understand mortality and don’t want to leave this task to the other children. Guardianship may not be at the front of your mind right now, but it’s worth considering these key questions:
- Who will help your child manage their RDSP (Registered Disability Savings Plan) asset and its’ disbursement when your child reaches 60? Who will help them make early withdrawals (if applicable)?
- Who will be around to support your child if they transition to supported living? Who will ensure their safety and health needs are met?
- When you pass on, who will help your child receive your pension? Parents who are teachers, municipal employees, and some other types of workers will need a personal representative to apply for the ‘adult dependent survivor’ pension for the child when the parents pass on. Who will apply for the pension and manage the payments?
- Who will ensure the child continues to receive and understand the rules for their provincial benefits such as ODSP (Ontario Disability Support Program) and PWD (Persons with Disabilities)?
- Who will apply for and manage their OAS (Old Age Security) and other supplements in retirement such as GAINS (Guaranteed Annual Income System)?
Starting the guardianship process earlier can make things easier in the future. There’s a lot to think about and guardianship can help make sure everything is in place for your child’s future.
The Legal Process
Guardianship is achieved when the court appoints a legal representative of the mentally incapable person. Someone interested in becoming a legal guardian must go through a process that involves filing court prescribed forms while complying with laws and regulations. The forms and rules are complicated, and the legal procedure must be followed properly. Typically, the court requires capacity assessments, and an opinion in a form of an affidavit from a physician may also be required to satisfy evidence of incapacity. The court also reviews a management plan, which contains detailed information about the incapable person’s finances including assets, expenses, debts, liabilities, and income. Similarly, a personal care plan is submitted where the applicant explains future care plans for the incapable person. Applicants must also notify the relevant parties.
What else should be considered?
Legal guardianship is a complicated legal process and there are always other factors to take into account, such as choosing the appropriate guardians and what to do if a guardian passes away. The information laid out in this article is just the start of understanding if guardianship is right for your situation.
For more information on legal guardianship, you can access the following resources:
- Introductory YouTube videos on Capacity Assessments, Guardianship & Substitute Decision Making, and
- Free eBook outlining the basics of guardianship and how to choose a legal guardian
- Contact our office on 1-866-KEN-POPE (1-866-536-7673) or email karen@kpopelaw.ca